Baby Baiting

Senator Lindsey Graham is the latest to join the assault on birthright citizenship, announcing that he may introduce a constitutional amendment banning automatic citizenship to the children of immigrants who "come here to drop a child." But his argument rests on a total fallacy.

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July 29, 2010

Arizona State Senator Russell Pearce, the father of SB 1070, has a new target in his cross hairs: "anchor babies," the ugly epithet used to label children born of undocumented immigrants. The senator’s newest legislative provocation would allow Arizona "to refuse to accept or issue a birth certificate that recognizes citizenship to those born to illegal aliens, unless one parent is a citizen," as he recently explained to his supporters. Crudely labeled "anchor baby bills" by the media, similar efforts are brewing in California, Oklahoma, Texas, Utah and Congress. On July 28, South Carolina Senator Lindsey Graham became the latest to join the assault on birthright citizenship, calling it a "mistake" and announcing that he may introduce a constitutional amendment to deny automatic citizenship to the children of immigrants who "come here to drop a child." "To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen," he said. "That shouldn’t be the case."

Graham’s rhetoric echoed that of e-mail, widely circulated by Pearce, that explains the logic behind the strategy: "If we are going to have an effect on the anchor baby racket, we need to target the mother. Call it sexist, but that’s the way nature made it. Men don’t drop anchor babies, illegal alien mothers do." This statement—which Pearce has publicly defended—comes from a man named Al Garza, identified by the Southern Poverty Law Center as a former top official in the Minutemen Civil Defense Corps and founder of the Patriots Coalition, whose website includes jokes about assassinating President Obama.

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Pearce and his ilk are capitalizing on a concept with old nativist roots that is lending new potency to the assault on Latino immigrants. Fueled by bogus conspiratorial depictions of newborns delivered moments after their parents cross the border; "emergency alien deliveries" overrunning US hospitals and endangering American lives; and undocumented mothers having children in order to collect public benefits on taxpayers’ backs, the anti-immigrant right is demonizing babies as the weapon of choice for armies of "illegals."

"It’s invasion by birth canal," the leader of a California anti-immigrant ballot initiative told the Los Angeles Times. The head of an anti-immigrant group in Virginia called for an investigation into "whether or not illegal aliens have a preferred breeding season." According to Texas Republican Representative Ron Paul, "awarding automatic citizenship to children born here minutes after their mothers illegally cross the border" is "a matter of national security."

The "invading army" rhetoric is not accidental. The "citizenship clause," Section One of the Fourteenth Amendment, states clearly that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." There are two exceptions: children of foreign diplomats and the children of invading armies. The latter lends itself perfectly to the kinds of xenophobic sound bites that whip up support for anti-immigrant laws.

Federal legislation aimed at denying citizenship to "anchor babies" dates back to 1995, when California Republican Representative Brian Bilbray invited members of Congress to visit San Diego hospitals and see for themselves "what we see in the parking lot": undocumented mothers waiting "to dilate, just so she can deliver her baby in a US hospital." That year, Bilbray garnered fifty-one co-sponsors for his Citizenship Reform Act, which would have denied "automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens." In 2009 Republican Representative Nathan Deal of Georgia scored ninety-two co-sponsors for his nearly identical Birthright Citizenship Act. "People thought it was on the fringe," Bilbray boasted in 2007, recalling his early efforts to outlaw birthright citizenship. "Now it’s mainstream."

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In Congressional testimony in 2008, James Edwards of the conservative Hudson Institute summarized the widely held misconceptions underlying the "anchor baby" myth. "The policy of granting automatic US citizenship to the ‘anchor baby’ effectively foils the parent’s deportation, qualifies the illegal parent to derive benefits accorded to the newborn based on his or her citizenship, and allows that illegal alien to begin his own chain of relatives," he warned, calling on Congress to end the incentives immigrants have "for birthing their offspring in the United States."

Like the slur "anchor baby" itself, each of these claims is a fallacy. Far from "anchoring" their parents to US soil, many children born to undocumented immigrants are seeing them be deported. And for all the rhetoric spewed by the right about the need for tough new legislation to combat the immigrant "invasion," laws governing immigration to the United States have gotten more restrictive in the past fifteen years.

Today, a citizen must be 21 in order to sponsor the green card application of a parent or an immediate relative. The applicant must then show documentation proving that he or she has not been in the United States unlawfully for more than one year. Barring such proof—the primary obstacle most immigrants face—the parent must return to the country of origin for ten years before being allowed to lawfully re-enter the United States and resume the application process. This is commonly referred to as the "touchback rule," explains María Blanco, director of the Earl Warren Institute at the UC, Berkeley, School of Law, and it is among the most insurmountable restrictions placed on the legal naturalization process in the name of "immigration reform" passed in 1996.

"The new laws effectively sentence people to a ten-year separation from their families if they try to go through the application process," says Blanco. "When you read the statistics about how the undocumented population has increased, you have to realize how much of that is the direct result of blocking people from gaining legal status who, before, legitimately could."

Immigration reform also curtailed due process and blunted judicial discretion in criminal cases involving immigrant defendants, greasing the wheels of deportation proceedings. Many nonviolent misdemeanors were reclassified as aggravated felonies for this purpose. The result? According to a 2010 report by Berkeley and UC, Davis, 88,000 immigrants who were legal permanent residents and parents of children with citizenship were deported between 1997 and 2007, the majority for misdemeanors. In many cases, children have no choice but to go with their parents, which means that "we are de facto deporting American citizens," points out New York Democratic Representative José Serrano. To restore some judicial discretion in deportation proceedings involving parents, Serrano is sponsoring the Child Citizenship Protection Act, a measure crafted by the New York–based Families for Freedom, an organization led by immigrant mothers fighting detention and deportation to keep their families intact. In June, the Supreme Court ruled unanimously to ease the rules mandating automatic deportation for legal permanent residents convicted on minor drug charges.

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The notion that "anchor babies" are a means of reaping government benefits for undocumented parents can also be easily debunked. Federal welfare reform passed in 1996 disqualified most immigrants, including most legal permanent residents, from receiving almost all forms of public assistance and imposed a five-year waiting period on applications for assistance on all future immigrants. Researchers estimate that these new restrictions accounted for more than half of the vaunted savings during the first year of welfare reform. At the state level, claims like Pearce’s, that immigrants are flocking to Arizona to have children and "gain access to the great welfare state we’ve created," are particularly absurd. According to a study by the Annie E. Casey Foundation’s Kids Count project, Arizona ranks fortieth in the nation in overall child well-being and forty-sixth in high school dropout rates. "If someone was looking for a great place to go to raise a kid, Arizona wouldn’t be one of them," says Laura Beaver, national coordinator of the study. In fact, it’s easier to make the case that immigrant families are advancing the welfare of Arizona: children in immigrant families in the state are more likely to live with two parents and to have a father in the home who is working full time, year round, than children in nonimmigrant families.

The hysteria over "anchor babies" has made hospitals useful symbols for the fearmongering right, which warns that undocumented immigrants are endangering the healthcare system. New York’s Suffolk County Executive Steve Levy, who once claimed that pregnant immigrants forced Southampton Hospital’s maternity ward to close, puts it this way: "You don’t want to be inhumane and turn away someone who’s bleeding, but the healthcare system might implode." In fact, Silvia Henriquez, executive director of the National Latina Institute for Reproductive Health, says the opposite is true. "Given the limited access that immigrant families already have to healthcare, this xenophobic climate toward immigrants makes women afraid to seek prenatal and pediatric care."

The climate Henriquez describes became even more chilling in July, when anonymous Utah residents calling themselves Concerned Citizens of the United States sent a list of 1,300 names labeled "Illegal Aliens" to state law enforcement, the governor’s office and local media, calling for the immediate deportation of all the people on it. The list included not only personal and work addresses and Social Security numbers but also the names of pregnant women along with their scheduled delivery dates. Utah officials say the private information was unlawfully released by two employees of the Utah Department of Workforce Services, one of whom has been fired. A criminal investigation by the state attorney general is under way. "Clearly, it’s not even meant as a blacklist," says Utah Attorney General Mark Shurtleff. "It’s more like a hit list."

"Anchor baby bills" may be getting disturbing traction in an era when even the president is being called upon to show his papers. But that doesn’t mean they will necessarily have long-term legal success. Citizenship by place of birth, jus soli, is a centuries-old tradition in English and American common law and jurisprudence, dating back to the Declaration of Independence. The Supreme Court’s Dred Scott decision in 1857 temporarily interrupted the tradition, ruling that African-Americans were not and could not ever become citizens and "had no rights which the white man was bound to respect." A short decade later, slavery was abolished and the Fourteenth Amendment was written with the clear intent of granting citizenship on the basis of "the objective measure of US birth rather than subjective political or public opinion," explains Elizabeth Wydra, chief counsel at the Constitutional Accountability Center. With recent polls finding that 58 percent of all likely US voters—and 64 percent in Arizona—think a child "born to an illegal immigrant in this country should not automatically become a citizen," Wydra notes that "the current, inflammatory invocation of ‘anchor babies’ by opponents of birthright citizenship confirms the good judgment of the framers of the Fourteenth Amendment in placing the question of citizenship beyond the ‘consent’ of the majority."

Even Steve Levy, who continues to warn that undocumented workers are putting the health of Americans at risk, acknowledges that efforts to deny birth certificates to children of undocumented immigrants are not likely to work. "Every hospital takes the view that the Constitution says you have to give a birth certificate to every child born there. I don’t think these laws are going to stand up in court," he says. "But you can understand where these states are coming from—the problem is so at the local level that they’re willing to try anything."

Ira Glasser, head of the ACLU from 1978 until his retirement in 2001, explains that this rogue "try anything" approach serves a strategic purpose. "The right wing loves to run against the federal courts. What they’re doing isn’t really about legislation or litigation but part of a larger political and public relations strategy—each failure becomes another opportunity to build their movement."

This is why Texas Solicitor General James Ho concluded his analysis of the anti-immigrant challenges to birthright citizenship by advising, "Stay tuned: Dred Scott II could be coming soon to a federal court near you."